Australia’s Guantánamo Problem

By Ben Saul

March 25, 2014

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On a remote, sunny island, some 52 people have been detained for up to nearly five years without trial on secret evidence, with no prospect of release. A series of suicide attempts since 2012 speaks to their profound suffering. One man attempted to hang himself with a bedsheet. Another tried to electrocute himself. Another drank bleach. Another cut himself and used his blood to leave a message on a wall. All remain in detention; the government dismisses them as attention-seekers.

The island is not Cuba, where the United States holds inmates at its prison at Guantánamo Bay, but Australia. Over a decade after 9/11, the long shadow on human rights cast by America’s “war on terror” has extended to one of the world’s most peaceful corners.

The majority of these detainees, most of whom I represent, are deemed security risks by the Australian government and housed in facilities in Villawood, a Sydney suburb, and Maribyrnong, near Melbourne. An estimated 46 are ethnic-Tamil Sri Lankans, most of whom fled to Australia to escape Sri Lanka’s 26-year civil war between Tamil separatists and Sinhalese-dominated government forces. Three are Rohingya Muslims from Myanmar, where recent clashes between Muslims and Buddhists have caused hundreds of deaths and displaced hundreds of thousands of people. One is a Kuwaiti Bedouin; another is an Afghan of Hazari origin, an ethnic group long victimized by the Taliban.

Last August, the United Nations Human Rights Committee found that the detainees were being illegally held, without proof or judicial protection, in cruel, inhuman or degrading circumstances. A committee report identified some 150 violations of the 1966 International Covenant on Civil and Political Rights, which Australia accepted in 1980. It set a Feb. 18 deadline for the detainees’ release into Australia, on security conditions as appropriate, which Australia summarily ignored. This flouting of United Nations recommendations is unacceptable: Australia should immediately release the detainees and guarantee them due process under national law.

The United Nations report also criticized Australia’s practice of detaining children, including infants. In 2009, three children under the age of eight were held with their parents at the Villawood facility. The report found that detention had severely impaired the children’s psychological development. The family was finally released last year, after the Australian Security Intelligence Organization revised its assessment.

In making a case for detention, Australia’s immigration department relies on a security assessment of each prisoner, covering everything from espionage to terrorism and people-smuggling. The burden of proof is not high; detention can be upheld even if the A.S.I.O. deems it relatively unlikely that the person under assessment may commit harm. As the organization is not legally required to disclose evidence, little is known about why specific risk designations are upheld. Many detainees do not know the grounds on which they are being held. Because no court or tribunal can independently test the organization’s claims, it is impossible to know whether the detainees are truly dangerous.

The security organization asserts that the Villawood and Maribyrnong prisoners might commit politically motivated acts of violence. In the case of the Tamil detainees, it alleges prior relationships with the Liberation Tigers of Tamil Eelam, the rebel group that carried out attacks and suicide bombings during the Sri Lankan civil war. But few of the detainees fought in that war, and none is alleged to have harmed civilians or committed terrorist acts. Many were nominally associated with the Tigers because they lived in parts of Sri Lanka that fell under Tamil control. One was a civilian lawyer for the Tamils; another dug ditches to shelter civilians. Australia’s immigration department in 2010 and 2011 extraordinarily granted refugee status to all of the detainees; a designation explicitly denied anyone who has committed past acts of terrorism, or who is believed to pose a serious future risk.

Few Australians, it would seem, are troubled by the plight of the detainees. Certainly no sizeable political constituency has expressed concern, perhaps because “boat people” are generally unpopular. But perhaps the larger problem is that, since reporting inside detention centers is restricted, the refugees have largely remained invisible.

Sustained international pressure is therefore essential. Australia cares greatly about its reputation, particularly with democratic peers like Britain, the European Union, Canada, Japan and Indonesia. Even China, Australia’s largest economic partner — and a country whose own human rights record is hardly unblemished — could be a useful lever. During a bilateral human rights dialogue last month, China rebuked Australia’s treatment of the refugees; Australia is sure to come in for even harsher criticism when it appears in July 2015 before the United Nations Human Rights Council.

The International Criminal Court could also consider whether the indefinite detention at Villawood and Maribyrnong amounts to crimes against humanity. The United Nations tribunal report provides ominous evidence of it, and Australia has accepted the court’s jurisdiction. Australian officials might finally take notice if they think they could face prison.

Motivation to accede to United Nations demands may come from yet another source: the United States. Australia regards Washington as its closest ally and has long followed America’s lead on the treatment of detainees. For years, the Bush administration contravened United States Supreme Court rulings on judicial oversight at Guantánamo, where inmates are held indefinitely under laws of war. And the Obama administration has dragged its feet on closing Guantánamo, despite clear evidence of human rights abuses.

But this month, the American military announced the repatriation of an Algerian who had been held at Guantánamo without trial for 12 years. Last month, a United States federal appeals court ruled that the judiciary could hear complaints regarding conditions at the prison. If America is finally moving toward the more humane treatment of detainees, Australia should take note.

Ben Saul is professor of international law at the University of Sydney.